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The Dark Age of the Trump Court

Evidence of Trump-nominee for the Supreme Court, Brett Kavanaugh’s often dangerous, pro-business bias runs as a common thread in his judicial positions on the U.S. Circuit Court of Appeals for the D.C. Circuit. Examples include scrapping regulations that protect trainers working with captive killer whales; that control coal-fired power plants, spewing pollution into neighboring states; and preventing internet monopolies from pushing out smaller rivals. His controversial nomination is triggered by the sudden retirement of Justice Anthony Kennedy, who cast the deciding vote in favor of gay marriage. Replacing Kennedy’s swing vote with Kavanaugh’s harsher stance “…will continue a trend toward widening America’s power and wealth gap,” according to the New York Times editorial board. As it is, the Times observes, “The court has given big business a leg up on workers, unions, consumers and the environment.”

Today’s increasingly conservative Supreme Court caps a 50-year rightward trajectory from the pathbreaking Warren Court, which ruled from 1953 until 1969. Under Chief Justice Earl Warren, an Eisenhower appointee, the Court reversed some of the worst injustices of the notoriously oppressive McCarthy era. It also heralded positive social change, such as school integration and expanded civil liberties (think Miranda Rule, granting those arrested the rights both to remain silent and to an attorney), a time when more enlightened federal power held sway over state’s rights. Focused on the Bill of Rights, Warren favored strong ethical principles – such as “one-man, one-vote” – and fostered an inclusive society that protected minorities.

With its emphasis on individual freedom over social good, libertarian ideals can yield varying results, ranging from support for gay marriage to looser gun controls, or to strongly pro-corporate policies that benefit the wealthy and lead to further income inequality and reduction of workers’ rights. A significant game-changing example is Citizens United v Federal Election Commission, granting corporations the ability to invest unlimited support for political campaigns, thus, eroding “one- man, one-vote” in favor of the mighty.

Now, with the more authoritarian and socially conservative Trump regime taking hold, it is generally expected that progressive decisions are likely to cease and possibly be reversed. We see this in the recent rulings upholding Trump’s Muslim ban, granting employers the right to deny workers reproductive care, and weakening the clout of the American Federation of State, County, and Municipal Employees (AFSCME), which, as our nation’s largest union, raises the bar for working conditions and wages. (Perhaps not incidentally, AFSCME has long been a major donor to the Democratic Party.)

Supreme Court justices can serve for life and make decisions that overrule Congress and all lower courts, hence, the power and influence of 53-year-old Kavanaugh could be far reaching. His nomination is boosted by massive funding from the Koch brothers, the Judicial Crisis Network, and pro-lifers, who are pressuring Democratic representatives in Florida, Indiana, Missouri, North Dakota, and West Virginia to vote in favor. For their part, NARAL Pro-Choice, Planned Parenthood Federation of America, Demand Justice, and Indivisible are leading the charge to defeat Kavanaugh.

While our democracy rests on a sturdy tripod, dividing power between the Court, the Congress, and the Presidency, that stability may prove fragile and potentially collapse. If Trump’s tyranny grows, our top court could bend to the ruling party, as seen in China, Russia, and more and more nations around the world. Reflecting back to the McCarthy era, not only were dissidents, including actual and suspected US Communist Party members, persecuted and imprisoned, but the volunteer lawyers who defended them were, at times, immediately handcuffed and jailed, without due process, following the conviction of their clients.

Spearheading that investigation was Roy Cohn, who served as chief counsel to Senator Joseph McCarthy during the “Second Red Scare” and later, prosecuted Julius and Ethel Rosenberg, sending them to the electric chair for treason. Cohn, a master manipulator, went on to represent and mentor Trump during his early years in business. (Cohn’s career ended and soon after, his life, when he was disbarred for unethical conduct in 1986.) Now, echoing McCarthy’s stance, Trump’s propensity for draping himself in the flag, while deriding the free press and all who dare to criticize him, bodes ill for our independence.